Questions and answers on law part 21

 

Q 1:- Whether first appellate court can conduct enquiry on application filed under Order 22 Rule 5 of Code of Civil Procedure? 

Ans:- O 22 R 5 of CPC DETERMINATION OF QUESTION AS TO LEGAL REPRESENTATIVE.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.

Q 2:- Accused surrendered before magistrate and sought bail. Magistrate has called say of investigating officer. Thereafter accused has not pressed his application for bail fearing police custody. Whether court can permit withdrawal of bail application after passing of order of accepting surrender of accused?

Ans:- Section 437 (1) of the Code provides that, when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail.

An accused can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.

Supreme Court of India

Sundeep Kumar Bafna vs State Of Maharashtra & Anr on 27 March, 2014

"we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court".

In my opinion, once accused surrenders before court and court call say of investigating officer, accused cannot not press his application as he is deemed to be in custody of court.

Q 3:-  Can a person after withdrawing first appeal can file a review petition in trial court against judgment?

Ans:- Order 47 R 1of CPC

  Application for review of judgment

(1) Any person considering himself aggrieved-

(a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or Order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment to the Court which passed the decree or made the Order.

(2) A party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. 

As per my opinion, a party can file review application in trial court if he withdraws first appeal after obtaining leave of appellate court for filing review application.

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